I'm sitting and waiting for my case to be called. I know my last two cases for the day are going to be called last because my clients are residents at the local juvenile detention facility and they are always the last cases called. A case is called and a young woman comes up to the bench by herself. Now, admittedly the only reason that I paid attention at first was because she wasn't half bad looking and her sweater fit just right, but the case itself quickly became interesting.

The woman walked up and announced that she was going to defend herself. The judge reads the charge of misdemeanor obstruction of justice and asks her how she is going to plead. "Not Guilty." The prosecutor gets a pained look on his face and asks the judge to hold everything for a minute. Then he walks the young woman away from the bench and says, "The judge's gonna find you guilty of this. Plead guilty and we'll take it under advisement for 6 months. If you don't get in any further trouble it'll go away and there won't be anything on your record." The woman looks upset, but I think I see her nod. They both walk up to the bench and the judge again asks her how she pleads. She pauses for half a second, then takes a breath, and starts crying. And not gentle sobs - nope, she's out-and-out WAAAIILLing. The judge is sitting there in shock, looking at this girl balling her eyes out four feet away and, after a couple seconds the prosecutor suggests that they pass this case over. The judge agrees and the girl bolts from the courtroom - followed by mom and dad, who were sitting on the front row of the gallery.

A little later the court is in recess and Dad is back in the courtroom. The prosecutor walks over to talk to him and Dad says something about how the girl just can't bring herself to plead guilty. I can't hear the whole conversation (and I'm not trying to eavesdrop) but I think the prosecutor makes another effort to get the family to talk her into taking the deal.

Court goes back into session and the case is called again. The girl walks up and I'm sure they've got it all squared away. The judge asks her how she's going to plead. "Not guilty." OMG. The prosecutor looks more frustrated than anything else and puts on his case. A state trooper was dealing with another young woman and was trying to get her to exit a vehicle. The other woman refused to exit her vehicle so the trooper took her by the arm and tried to remove her. At this point the other woman launched herself at the trooper and used her fingernails to gouge into the trooper's head (I remember seeing the trooper the week after this happened and he had 3" furrows in the sides of his skull). The trooper then "takes control" of the situation and handcuffs the woman. The girl on trial apparently ran up and started screaming at the trooper while he was engaged in combat with this woman and then she tried to pull her friend away from the trooper while he was trying to handcuff her. Her primary defense? "I've never seen anyone handled as roughly as he treated Joan." That was it - an open and shut case. The judge finds her guilty.

The girl starts to cry again (although more like a quiet sobbing). The judge is ready for it this time and tells her that crying isn't going to change anything. Then the judge sentences her to six months and suspends all of it.

The lesson for today boys and girls (besides hiring a defense attorney)? If a prosecutor finds that tiny corner of his heart where he hides the tendency toward mercy take the deal.

I gotta admit I'm a little worried that the second actor metioned is actually an actress. Too many movies which could be good historical war movies are ruined by the useless romances movie makers throw in (I guess to appeal to the ladies in the audience).

. . . but there's a pretty big difference between recklessly stupid sex that kills followed by a fear that no one will believe you (or a realization that it's probably manslaughter anyway) and hiding the body out of panic or cold-bloodedly planning to kill someone before the act and prepping a place to hide the body.

This is LOL funny. I have a variation of that conversation at least once a week, if not far more often. The main difference is that my clients insist on calling it "this little charge", as in

Client: "I can't go to prison for 20 years on this little charge."

Me: You're accused of having stolen something worth more than $200. That's a grand larceny and carries a maximum penalty of 20 years. The judge could sentence you to that, but (speaking quickly so Client cannot interrupt) I've never seen anyone get more than 5 years and your sentencing reccomendation is for 3 months. That's your most likely sentence.

4) Thief is tackled at mall but escapes with earringA thief managed to get away with one diamond earring Monday after being subdued in a mall parking lot. Police recovered the second earring in the lot where the jewelry salesman had tackled the thief. The set was valued at about $50,000.

Strange. For the first 5-6 years of my practice I couldn't have gotten the Virginia Court of Appeals to pay attention to me if I were representing Mother Teresa convicted of manslaughter and I stood outside the court building in Richmond in red bloomers with a megaphone.

Now, within a period of a couple months the Court of Appeals has accepted petitions in two of my client's cases. Hoorah!

But Wait, here's where my paranoid side starts to kick in. I don't know how many judges on the Court of Appeals have ever wasted time reading this page, but I just keep picturing this:

Our intrepid hero Ken Lammers walks to the podium to start his first ever appellate oral argument, filled with the confidence that Truth, Justice & the American Way are on his client's side.

LAMMERS: May it please the Court . . .

JUDGE SMITH: Mr. Lammers, before you begin, I just want you to know that I am a regular reader of your blawg - as are Judges Jones and Greene.

Suddenly our Hero begins to wonder if there might be some trouble in Muddville today.

JUDGE SMITH: I found your comment on my decision in the McGillicutty case particularly humorous. And yes, as you stated in your comment, when I stood on my head and looked through a cracked mirror the law looked exactly like I explained it in that opinion.

JUDGE JONES: And I want to thank you for your helpful analysis of my Perrywinkle opinion. It was so funny to read my writing described as worthy of a B+ for creative writing, but having nothing to do with the law.

JUDGE GREENE: And I laughed out loud when I read when I read your characterization of me as someone who knows the law so well he doesn't even have to look at the books - since the books will always tell me that the conviction should be upheld.

JUDGE SMITH: Of course, Mr. Lammers, we're all professionals here and won't let any of this affect us. Now on to the case.

Although you didn't mention it in your brief, I'm sure a man as learned as you knows that a similar issue has recently been decided by the Supreme Courts of Guam, Mongolia, and Botswana. Let's start by discussing the case from Mongolia . . .

Hmmm . . . I wonder if it's too late to burn this site to the ground and forswear its existence?

14 February 2006

Jail accidentally releases inmate to be sentenced to 47 years.A man convicted of two first-degree murders, walked out of Riverside Regional Jail on Saturday morning, two days before he was to be sentenced for his role in what prosecutors described as a drug deal gone bad. He turned himself in early that afternoon!

13 February 2006

"I was reading that the [Virginia] General Assembly House of Delegates had finally submitted a proposal for funding the transportation initiatives that Governor Kaine has set as the priority objective of this legislation session.

I was curious about the point of increased penalties for drivers convicted of certain offenses, including Reckless Driving, Drunk Driving, Driving with a Suspended license, and any driver with 4 demerit points or more. Under the House plan, anyone convicted of these crimes within the past 3 years would pay additional fines.

Is this legal?"

Interesting. If it was just citations I think it might be viable. There is a disturbing tendency to classify punishments which do not include the possibility of imprisonment as "civil" and therefore not subject to constitutional protections. However, I must admit the cases which come to my mind are double jeopardy cases - not ex post facto and I think the analysis may differ. This clause

is not part of the criminal law protection section but part of the general constraints on the Congress. As such, I'm not sure the protection is extended to State matters by the 14th Amendment. Admittedly, I have never argued it in any of my cases and therefore have limited knowledge. Under Virginia's Constitution Art. I Sec. 9 (The Bill of Rights) offers exactly the same protection:

However, I have read far too often in our appellate courts' cases that Virginia's Constitution only offers the same protections which are offered by the federal constitution (they are co-extensive).

On the charges which carry the possibility of jail time it would be double jeopardy to increase the punishment. The question then becomes, if Virginia bills everyone an extra $20 is anybody going to spend the money it would require to get a writ of prohibition and stop the enforcement? That would cost a lot more than just $20.

Someone out there must have had an ex post facto argument recently. If anyone can explain exactly how it would apply (or not) in this sort of case I welcome your comments.

As an attorney I understand that reasoning. As an observer of Richmond I wonder about the possible outcomes. What happens if the defendant charged with killing the Harveys is sentenced to death while the defendant charged with killing the Tuckers isn't (or vice-versa)? Upon their murder the Harveys became a cause celebre: an upper middle class, white family killed in the basement of its own house for no obvious reason (though robbery is now the claimed reason). The news was all over it and every time you turned on the TV you saw something about some event in the Fan or Cary Town (trendy Richmond neighborhoods). The Tuckers were a solid, working class, black family. Their murders got attention, but it felt like that kind of guilty attention the news gives to events because it knows it would be wrong to concentrate too much on another story. Eventually, with the linking of the two sets of murders coverage is always linked now and when one family is mentioned both are.

The difficulty here is going to be that it appears there is going to be more for the defense attorneys to work with in the Tucker case. It appears that Mrs. Tuckers' daughter may have been a partner in crime with these two in at least one earlier crime in Chesterfield County and the Tuckers lived in a rough neighborhood (Broad Rock Road is well known to anyone who does criminal defense). Did the defendants just decide to turn on them or was something else happening?

Don't get me wrong, I think that the probable outcome in both cases is the death penalty. I just worry about the effects if there are different results in the different cases.

09 February 2006

A CIA employee faces charges in connection with 17 burglaries in the McLean area, some of them targeting homes of other CIA employees. Fairfax County police said a search of the suspect's home in Falls Church uncovered a large quantity of cash, jewelry, antiques, license plates and bags filled with more than 1,000 items of women's underwear.

08 February 2006

Sometimes "wins" just don't feel like wins. This week has had a couple of these moments.

The week started out with a hearing for a motion to suppress evidence gained from an unconstitutional arrest. I'd read the case law, prepped my argument, and thought I was probably going to get all the evidence excluded. Of course, the prosecutor had read all the caselaw as well. Being no dummy, he knew which way the winds were blowing and when I walked in he offered to reduce one felony to a lesser included felony, another felony to a misdemeanor, and drop the third felony; he also agreed to a sentence far lower than what I think my client's looooonnng record would give him if he is convicted of his current charges. I take the offer to Client and after what seemed like an eternity of tortured soul searching (probably 30-40 minutes) Client decides to take the bird in the hand. So, I don't get to make my brilliant argument, but Client gets a sentence he is comfortable with.

Wednesday was scheduled to be a whole day jury trial. Client was charged with taking and writing bad checks from his mother. Mom had told me he had permission to use her checks and even wrote a letter to me stating this. I was pretty confident about how the trial would turn out. Then at the end of last week the prosecutor called and told me that he was going to drop the charges. Normally that would make me ecstatic. Of course, then the other shoe dropped. The reason the prosecutor was dropping the charges was that Client, after being bonded out by his mother, went out and wrote more checks on his mother's account and then assaulted a police officer. The prosecutor figured he had a much stronger case on those charges and therefore he wasn't going to push forward on the less viable charges I represented Client on. So today we came to court and the prosecutor dropped both charges instead of having the jury trial. Still, it wasn't exactly the most fulfilling "victory" I've had in court.

2) Holdup suspect carried handgun lookalike. -As a former police officer, I don't care if it was a hairdryer... if you point ANYTHING at police officers in the dark you are taking your life in your own hands! These BB/Pellet guns are made to look exactly like "real" weapons. The police don't have the luxury of trying to determine if the gun a robbery suspect is pointing at them is "real".

Two years ago Client and another man drove to a factory, picked up some metal scrap, and tried to sell it. When the police showed up at the recycling center both Client and Other Man fled. These facts are undisputed.

Shortly after that event Other Man (OM) was arrested and tried. During his trial he tried to blame Client, but the judge wasn't having any of it. OM was convicted for stealing the metal.

Late last year Client was arrested for the theft of the metal. Last week we went to trial for grand larceny and trespassing.

The prosecution's first witness was the owner of the company which built things from the metal and had scraps piled behind his factory in an open parking lot (marked "No Trespassing). The prosecution asks him to identify pictures of the metal. The pictures are of big squares of metal with parts of the sheet punched out for whatever was being manufactured. The prosecution identifies the pieces of metal as coming from his factory. I stand up and ask if the metal had some sort of dye in it - "No." Then I ask if the metal sheets had some sort of identification number on them - "No." Then I sit down. The judge, realizing what I'm angling toward decides to remove any ambiguity that I might have created. He asks the witness if his company is the only one who manufactures the things his company does which require parts to be stamped out of metal like that - "No, Sir. There are about 12 in the Richmond Metro area." Ahhh . . . If only the trial had stopped at that moment. But of course it didn't.

The next witness the prosecutor calls is OM. OM sits there and tells the same story that he told at his trial. He claims Client told him that Joey Smith had said they could go get the scrap metal and that he was clueless about the whole thing. All he knew was that he would get $100 for each of the two truck loads they were taking to scrap yard. Cross examination went something like this:

Me: Joey Smith is your cousin, isn't he?

OM: Yes.

Me: The trucks used to pick up the scrap metal were your truck and your son's truck?

OM: Yes.

Me: The metal was stored over night at your residence?

OM: Yes.

Me: You were convicted of stealing this metal?

OM: Yes.

Me: Have you been convicted of other felonies?

OM: One other.

Me: Have been convicted of misdemeanors involving lying cheating, or stealing?

OM: I don't know how many times.

With that the prosecutor closed his case in chief.

I make a motion to strike which is quickly shot down.

Next comes the only evidence for my client: Client testifies. The general theme of his testimony is that he was an employee of OM. OM offered him $100 to go pick up some scrap which Joey Smith had told OM he could salvage. They stored the metal at OM's house and then went to turn the scrap in the next day. He never thought to disbelieve his boss when he said it was approved to take the metal. On cross he is asked if he thought it was strange that they were there taking the metal on a Sunday night and again says he didn't think about it because his boss told him it was okay. Then he is asked why he ran when the police came. "I had a warrant for a traffic matter and I didn't want to get arrested." Next, why hadn't he turned himself in two years back when OM was on trial? "I heard about the trial and called the clerk's office to see if I had a charge and they told me I didn't. So, I didn't think there was anything to turn myself in on." Finally, the prosecutor pulls from Client his felony and misdemeanor convictions numbers.

Okay, so neither the prosecutor's main witness nor Client were particularly awe inspiring on the stand. Still, it seems to me that if two fairly equal, weak witnesses come to the stand pointing fingers at each other and one has previously been convicted of the very offense before the bench it's hard not to dismiss the charge placed on the second man (Client). Silly me.

The judge starts talking to my client: "Mr. Client, Mr. OM is certainly not the most reliable witness in the world and in other circumstances I might not put too much credence in his words. However, this isn't other circumstances. I think you're both thieves; you're both lying. I think you both went there that night knowing what you were doing. Therefore, I'm finding you guilty on both counts."

And I wander away from the courtroom wondering what I could have done. I can cross examine the prosecutor's witness as to his claims of the case. I can prep my client to tell his version of the events. I'm just not sure what I can do when the judge goes off an a third angle, different from the version of the events as told by either the prosecutor's witness or the defense's witness.

The Senate passed a bill that would ban the death penalty for juveniles. The measure now goes to the House of Delegates. The bill conforms Virginia law to last year's U.S. Supreme Court decision that it's unconstitutional to execute anyone under the age of 18.

Drug smugglers in Colombia turned puppies into drug mules by surgically implanting them with packets of liquid heroin. 10 puppies were rescued during a police raid on a farm in Colombia, the U.S. Drug Enforcement Administration said Wednesday, while announcing more than 30 arrests.

In Virginia there's a particularly nasty "crime" of driving after the Commonwealth has told you not to: Habitual Offender (HO). It's a leftover from when the General Assembly was first trying to stop those convicted of multiple DUI's from driving which eventually grew to a monster. It grew so that people could be declared HO's for just driving with a suspended license and apparently both judges and DMV could declare someone an HO. At the very least it denied the person a license for 5 years. The first time a defendant was convicted of driving as an HO he would be convicted of a misdemeanor and he would, most likely, not even see the inside of the jail. The second time it was a felony (up to 5 years) and carried a mandatory prison sentence of one year. Considering the fact that most people must drive if they want to work, buy groceries, go to the doctor, etc. you can imagine the number of times people were getting sent away for a year. The way one lady put it to me was "My brother's a guard at [Jail X] and half the people serving time are there because they drove a car." That is probably a slight exaggeration, but there were clearly a lot of people doing time for driving a car. Eventually, even the Virginia General Assembly - not exactly a liberal bastion of friendliness to those oppressed - saw the injustice in this and eliminated the law which said that someone could be made an HO. However, it didn't take the next step and eliminate the punishment for those already declared HO's (or, more realistically, change the punishment to that of driving suspended). So, yesterday I was defending someone charged with driving HO 2d.

The trial is set for the afternoon; that morning I go talk to the prosecutor. I point out that my client had not been convicted of an HO 1st before he was charged with this HO 2d. "Doesn't matter", says the prosecutor and hands me Thomas v. Commonwealth to read. I glance it over and it seems like what he's saying is correct. Anyway, I don't have time to read it right then and we work the felony down to a misdemeanor for other reasons.

Later, I go back to read the opinion. The question is:

The main issue in this appeal is whether §46.2-357(B)(3) subjects a defendant to the specified enhanced punishment for a subsequent offense if, at the time of commission of that offense, the defendant has not been convicted of the earlier offense.

The answer:

The statute does not require that for a first offense to be cognizable as such, it must not only occur prior to the second offense, but also result in conviction prior to the occurrence of the second offense.

Basically, the Virginia Supreme Court decides that since the statutory language calls for a punishment for a second offense rather than a second conviction it is the date of the offenses which matter, not the convictions.

Actually, this confirmed that my client was not guilty of HO 2d. His first "offense" was the one we were going to court over. He'd been arrested on the charge in Copperton County on 20 September 2005 (my charge). He was arrested in Prestonville on 4 October and they convicted him of the misdemeanor a week later (talk about swift justice). He was now facing the Copperton charge.

When we get to court I point this out to the prosecutor and his response is, "That can't be the right reading. If it were, the defendant could be found guilty of the second offense and then not guilty of the first." So, I reread it. And it stands for exactly what I said above. And I agree with the prosecutor's assessment of the result. A defendant can be charged with a first time HO. Then a couple days later he is charged with a second HO. For some reason the second goes to trial before the first, the defendant is convicted and he is sentenced to the mandatory year. A month later there is a trial on the first HO and it turns out that Defendant's brother had been driving the car and gave a false ID to avoid his own warrants (it happens more than we'd care to believe); Defendant is found not guilty of the HO 1st. There is no basis for the HO 2d, but he's already got that year long sentence.

I guess Defendant could file for a writ of actual innocence, but, of course, by the time that worked its way through the appellate system he will probably have served his year.

01 February 2006

From the files of The Smoking Gun, check out a 20 year old Iowa man locked up on robbery and assault charges. In their words, notice the distinctive tattoos above his "smoky brown eyes". I'm sure he can really charm a jury! (Warning- explicit tattooed language!)

Actually, I've been messing with this for a few days and it's already been up as an .avi file, but unless you waited forever for it to load in the background it wouldn't work. It should stream much easier now.

Video Channels

Disclaimer

In case anyone out there needs this warning: This ain't legal advice. Everything in the blog is off the cuff and no one goes back and reads all the cases and statutes before blogging. The law may have changed; cases misread and misunderstood two years ago can still lead to a clinging misperception. Courts in your county, city, or State probably don't operate as described herein. Feel free to be inspired, but YOU MUST ALWAYS DO YOUR OWN RESEARCH OR HIRE A COMPETENT ATTORNEY TO DO SO because I haven't.